Is the employer required to return me to my prior job under FMLA?


Rhode Islanders who have exercised their rights to take time off from work by using the Family Medical Leave Act must also remember that they have certain rights when returning to work. Unfortunately, there are still employers who violate employment law with certain activities that might be used to dissuade an employee for using FMLA and do so in an underhanded manner. Or they simply do not grant an employee his or her rights when returning to work. For example, a worker has the right to return to the same job he or she left when using FMLA or one that is nearly identical. If an employer does not allow a worker this right, it could be the basis for a legal filing.

When an employee is not given back the same position from before, the new job must adhere to the following: there must be the same basic duties, status and responsibilities; it must involve the same level of skill, authority, responsibility and effort; the pay must be the same with overtime, bonuses and equivalent premium pay; other benefits like health coverage, disability, sick time, vacation days and more must be the same; and the work schedule must be generally the same.

Workers must remember that if they have used their FMLA leave and cannot return to work, the employer does not have to give them their former job back. There are special circumstances under FMLA. If it is a key employee, there might not be an automatic return to the former job. The key employee is deemed someone who receives a salary, is eligible for FMLA and is paid among the upper 10 percent of all employees at the job within 75 miles of the place of work. There is also a special circumstance with teachers as there are rules that hinge on the local agency. In general, the rules are applicable when a person needs to take leave intermittently or when the leave is close to the school term's conclusion.

Workers who have utilized FMLA but have not been put back in their old job after they have returned to work or were not placed in a similar job with all the same benefits have the right to file a legal claim to get what they are entitled to under the law. Speaking to an attorney who understands all aspects of the Family Medical Leave Act (FMLA) can help with a case.

Source: dol.gov, "The Employee's Guide to the Family and Medical Leave Act -- Returning to Work, page 14," accessed on July 13, 2017

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